NCAA gets support in bid to delay Ed O'Bannon trial

May 12, 2014
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Ed O'Bannon Jr. sits in his office in Henderson, Nev. A four-year-old federal lawsuit aims to cut players in on the action and dramatically alter the financial relationship between student-athletes and the NCAA. / Isaac Brekken, AP

by Steve Berkowitz, USA TODAY Sports

by Steve Berkowitz, USA TODAY Sports

A recent NCAA motion to redefine and/or delay the prospective trial in a lawsuit relating to the use of college athletes' names and likenesses has received support from an unlikely source: lawyers representing some of the plaintiffs.

Last week, the NCAA asked U.S. District Judge Claudia Wilken to separate claims and evidence relating to video games from the rest of the case or delay the trial from its scheduled June 9 start date.

Late Friday night, lawyers representing former Arizona State and Nebraska quarterback Sam Keller made a filing in which they said they supported the NCAA's request.

Although currently joined with a lawsuit against the NCAA by a group of former college athletes headed by UCLA basketball player Ed O'Bannon, the Keller case, as a practical matter, is a separate proceeding.

Keller's attorneys wrote they are supporting the NCAA's request because they have "primary responsibility" and are "best equipped" to pursue their specific claims against the NCAA. Those claims potentially are worth more than $100 million in statutory penalties, loss of profits and punitive damages.

When the name-and-likeness litigation began five years ago, the plaintiffs' claims initially were being pursued under separate lawsuits.

Keller's case involved personalities' right to control the use of their names, images and likenesses -- also known as the right of publicity â?? and was focused on video games. The case was brought against the NCAA and two co-defendants: video game manufacturer Electronic Arts (EA) and the Collegiate Licensing Co. (CLC), the nation's leading collegiate trademark licensing and marketing firm.

O'Bannon's case - being led by attorney Michael Hausfeld - primarily involved anti-trust law and, while it also aimed at the NCAA, EA and CLC, it involved video games and an array of other ways in which athletes' names and likenesses are used in college sports marketing, merchandising and broadcasting.

Those two cases later were consolidated into one, but EA raised issues with a ruling related to Keller's right-of-publicity claims and was allowed to begin pursuing appeals while the antitrust portion of the case kept moving forward. When EA's appeal to the 9th U.S. Circuit Court of Appeals failed, it asked the Supreme Court to take the case.

Meantime, last September, a proposed settlement was revealed that involved EA, CLC and not only the Keller and O'Bannon cases, but also two other cases concerning video games that had been filed against EA. The NCAA was not part of the proposed settlement, a final version of which still has not been filed. The association subsequently sued EA and CLC in connection with the proposed settlement.

This means Keller still has claims pending against the NCAA that could still be allowed to go to trial.â??

Keller's lawyers do not want to see those claims potentially affected by a verdict in the NCAA's favor in the impending trial. If the NCAA were to gain a complete victory in the trial, including on issues related to video games, Keller's lawyers likely would be prevented from pursuing their claims related to video games because of a legal principal that prevents relitigation of the same issue.

They said if Wilken is not inclined to separate the video-game claims and evidence, they want her to delay a trial until the Keller and O'Bannon cases can be tried together â?? which they will be ready to do in about six months. But they added that if Wilken agrees issues decided in the O'Bannon trial will not have any impact on the issues that can be raised in a trial in the Keller case, then they take no position on when the O'Bannon trial begins.

On Friday, lawyers representing EA and CLC also made a filing that supports the NCAA's request. They wrote that although there is a proposed settlement that could soon be finalized and filed with Judge Wilken, it will be several months before the settlement can be finalized. They leaves EA and CLC â?? like the Keller plaintiffs â?? with the need to protect their interests from potentially overlapping litigation.

The lawyers for EA and CLC added another concern: The process of finalizing the settlement will involve notifying the thousands of college athletes who were depicted in football- and men's basketball-themed video games and giving them the opportunity to object or opt-out of the settlement. If the trial is allowed to start June 9, the lawyers wrote, that process potentially would be occurring during the trial.

The prospect of that happening "could endanger the settlement itself" because the athletes who could receive settlement money "will have an incentive to decide whether or not to opt-out or to object based on the outcome of the trial."

In a statement Saturday, the NCAA's chief legal officer Donald Remy said: "All interested parties other than Mr. Hausfeld and his O'Bannon clients agree: the antitrust case scheduled for trial on June 9 should not go forward with videogame-related claims that are now at risk of being tried two or three times. The unanimity of opinion, including not just defendants but also all non-O'Bannon plaintiffs, demonstrates that granting the motion to sever would avoid prejudice and massive, unnecessary duplication of effort. Mr. Hausfeld and his clients are alone in their opposition to the motion, and their amped up rhetoric should be dismissed for what it is: a smokescreen to distract from the merits and promote their PR agenda."

Reached on Saturday afternoon, Hausfeld declined to comment.

However, in a filing Friday, Hausfeld and his legal team wrote that the NCAA's request for a delay or a severing of the video game claims and evidence should be rejected. In part, they argued that exclusion of claims and evidence related to video games would be "highly prejudicial" to their case.

They said the portion of their case relating to video games "arises from the common NCAA policy of not compensating college athletes for use of their (names and likenesses) that also applied to broadcasts and rebroadcasts." They said they will present what they called "common evidence of the conspiracy to implement that policy" and that being forced to present this evidence on a piecemeal basis would result in them being "unfairly deprived of the ability to offer evidence that the NCAA has no doubt determined to be highly unfavorable to it."